Selling a Right to Eat

Bava Metzia (7:6) | Yisrael Bankier | 2 months ago

In the seventh perek we learn that, in certain situations, a worker is
permitted to eat from the produce or fruit that he is working with. The
Mishnah (7:2) teaches that this right is biblical in origin. While the
Mishnah (7:5) debates whether there is a limit (or whether a work
should limit) the volume he consumes, the Mishnah (7:6) teaches that a
worker can forgo this right in exchange for an increased pay. One might
ask, how can one negotiate conditions that are contrary to Torah law?

Indeed, the Meiri asks this question. He however suggests that since
the stipulation is purely monetary, it is permitted. We have however
learnt of the debate regarding this very point. While R' Yehuda
maintains this position, R' Meir disagrees and argues that even if the
condition is monetary, one can not negotiate it if it runs counter to
Torah law. For this reason, the Minchat Chinnuch (576:9) finds this
answer difficult, since our Mishnah is "stam" (without explicit
authorship) and a stamMishnah is generally the opinion of R'
Meir.

The Minchat Chinnuch raises further difficulties. For example, this
stipulation relies on mechila (forgoing). The workers right to the
food only arise at the time of eating. Consequently, it should be
defined as a davar she'lo ba le'olam – a matter that is not yet at
hand. The difficulty is that mechila is not applicable for a davar
she'lo ba le'olam. (ChM 209:4). The Minchat Chinnuch ultimately
leaves the matter unresolved, requiring further analysis.

The Darkei David (92b, cited by the Yalkut Bi'urim 93a) suggests
that this case is not considered as if it is a stipulation against
Torah law. He explains that there is no mitzvah for the worker to
eat, nor is there a mitzvah for the owner to leave the worker food.
Instead the mitzvah is that if the worker wishes to eat, the owner
must allow him to do so. The stipulation then is not that the worker
will not eat, but that the worker will not want to eat while working.
If the worker never wants to eat, then there is no mitzvah to allow
him to eat the food, and the condition will never conflict with the
Torah law.

One might suggest that this direction can also be found in the Tifferet
Yisrael. The Tifferet Yisrael find this Mishnah difficult when
considering the ruling of the Magen Avraham (OC 169:1) that one cannot
stipulate regarding food as it causes anguish. The Tifferet Yisrael
answers that the Magen Avraham was only referring to a condition made
at the beginning of the year that would endure, and perhaps the worker
would regret the arrangement. However, regarding a day worker, as is the
case in our Mishnah, had he not estimated that he would be able to
uphold the condition he would not have made it.

The Darkei David may shed light on the Tifferet Yisrael. When
considering a long-term arrangement, one runs into the risk that the
work would not be able to live by the stipulation. In other words, the
worker may get hungry and by Torah law now have the right to take
food. The risk then is the stipulation would now run counter to Torah
law and be invalid. However a day worker, who, e.g. could have a large
breakfast, could safely estimate that he could live up to the condition
of not wanting to eat, and thereby not contradict the Torah law.